Ken Connor
Prosecuting the prosecutors
By Ken Connor
April 11, 2009

Many justice-hungry conservatives are angered at the recent dismissal of ex-Senator Ted Stevens's conviction for lying about gifts he received while in office. Conservatives are fierce in their defense of law and order. They believe in strong, swift justice. To see Stevens get off on "legal technicalities" appears to be a miscarriage of justice, but, in this instance, conservatives ought to be concerned about the great principles of justice at stake.

In October, Senator Stevens was convicted of seven counts of lying about roughly $250,000 in gifts he received while in office, including renovations to his home in Alaska. A key ingredient of the prosecution's case was the testimony of Bill Allen, a friend of Stevens who declared that another friend told him to ignore Stevens's request to pay for the remodeling of his home. According to Allen, this friend said, "Bill, don't worry about getting a bill... Ted is just covering his [expletive]."

This testimony was damning evidence which suggested that the Senator's insistence that he tried to pay for the renovations was empty rhetoric. Unbeknownst to the defense, however, Allen's testimony was inconsistent with prior statements he had made to prosecutors. Prosecution notes of an interview prior to the trial showed Allen had said that he did not recall any conversation about sending the Senator a bill. These inconsistent statements were damaging to the prosecution's case, and prosecutors did not disclose them to the defense as required by law. Stevens was convicted in October, and lost his Senate race in November. Convicted felons don't typically fare well in electoral contests.

Upon learning of the inconsistent statements, Stevens's lawyer Brendan ("I am not a potted plant!") Sullivan — the scrappy lawyer who successfully defended Oliver North — asked the court to dismiss the charges against Stevens. U.S. District Judge Emmet G. Sullivan obliged and appointed an independent counsel to investigate the prosecutors for possible misconduct. The judge declared, "In 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case." Judge Sullivan was right to take a hard line on the prosecution's deception. Stevens may have deserved his conviction, but no conviction based on deception can possibly be called just.

There are broader issues at stake here than one man's guilt or innocence. The presumption that one is innocent until proven guilty is the bedrock of justice in our society. One who stands accused of crimes can only be deprived of life or liberty after receiving due process and a fair trial. Our Founders understood the importance of a fair system of justice. American colonists suffered all too often at the hands of kangaroo courts set up by a tyrannical king. The deck was stacked against them and the outcome was often determined in advance of what was little more than a show trial. Therefore, the Founders ensured that a number of judicial safeguards were incorporated into our Bill of Rights, including the rights to due process of law, trial by jury, and a speedy and public trial.

In a just society, criminal prosecutions are hedged in by due process protections. A prosecution should never be pursued with an ends-justifies-the-means mentality. Prosecutors have enormous power. They have the power to destroy the lives of those whom they pursue. It is not the job of the prosecutor just to pursue a conviction. As the Supreme Court has declared, the role of the prosecution is "not that it shall win a case, but that justice shall be done." The merits of the case matter. Vince Lombardi's adage that "winning is the only thing" may apply to football, but it does not apply to criminal prosecutions.

Plato understood the temptation of public servants to abuse the power entrusted to them, asking in his Republic, "Who will guard the guardians?" (Or the more recent iteration, "Who watches the watchmen?") There is no easy answer to this question and no way to guard completely against the abuse of power. Prosecutors are fallible people, and some will inevitably abuse their power. That abuse can, however, be checked by the supervision of judges like Judge Sullivan and the outrage of the public over abuses like the deception in this case.

It is important that people recoil against the prosecutorial abuse that occurred in this case instead of focusing on how Stevens "got away." It is better that one man go unpunished than for an innocent man to be punished for a crime he didn't commit. The safeguards within our judicial system are designed to protect the innocent from the excesses of a powerful government. If we don't utilize those safeguards, we will see far greater injustices than an unpunished gift-grabbing Senator.

© Ken Connor


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